127 Tenn. 107 | Tenn. | 1912
delivered the opinion of the Court.
This is a suit for damages based on an alleged breach of contract, and seeks to fasten liability upon the Singer & Johnson Fertilizer Company as principal, and upon the other defendant as surety. Each of defendants demurred to the bill. The chancellor sustained the demurrers, and dismissed the bill at complainant’s cost; and it has appealed and assigned errors.
By the contract sued on, the principal became bound co remove dead horses, and other animals therein enumerated, from the streets and alleys of the city of Nashville within a time certain after notice; and, being so bound and after notice, the principal failed to remove a certain dead horse from one of the streets within the time required by the contract, with the result that a horse, quite alive, but said to be gentle, and attached
It says it is entitled to recover against the principal defendant because the failure of that defendant to remove the carcass within the time required by the contract was the proximate cause of the injury and the resulting loss, and that it is entitled to recover against the surety company because the latter signed a bond as ■surety for the principal, under the terms of which the surety company is liable to the city upon default of the [principal.
Accepting as true the averments of the bill (as we must when the case stands on bill and demurrer), it is clear that the principal defendant breached the contract between it and the city by failing to remove the carcass from the street within six hours after notice. This much it concedes. It is also clear that, if it had not so breached the contract, the injury and the consequent loss to the city would have been averted. But it also appears that the injury did not occur during the six hours after notice within which the principal defendant was bound to remove the carcass, nor even a short time thereafter. The injury occurred some twelve or thirteen hours after the expiration of the six hours. And by the terms of the contract between the city and the principal .defendant it was stipulated that, in the event of failure
The contract does not in express terms bind the principal defendant to pay any loss which the city may sustain by reason of the failure of that defendant to remove any carcass within the six hours after notice. But it was clearly within the contemplation of the parties that, in such event, the city would remove the carcass and collect the liquidated damages therefor. Ey such a construction of the contract, and such a discharge of its nondelegable duty to the public to keep its streets in safe and sanitary condition, the city would have been compensated for the proximate consequences of the breach of the contract by the principal defendant, and also have averted, the injury and loss which it sustained by its failure to so construe its contract and discharge its public duty.
So it comes to this: The city by this suit says to the principal defendant: “You are liable to me for the sum sued for. Your breach of your contract caused the injury and resulting loss to me.” To which that defendant replies: “No, my breach of the contract only caused you a loss of $5, the liquidated damages agreed on between us when we made the contract. The loss for which you sue me was caused by your misconstruction of your contract rights, and your negligent failure to discharge your duty to the public by removal of the carcass during the thirteen hours which intervened between mv breach of the contract and the time of the
Can it- be doubted which of these parties has the better of this argument? We think the right of it is Clearly with the defendant.
The power and duty vested by the legislature in a municipal corporation over and concerning the streets and alleys of a city or town is in trust for the benefit of the citizens thereof, and must be exercised by those upon whom it is conferred, or under their express direction; the municipality cannot escape responsibility for an improper exercise of such power, or discharge of such duty, by delegation thereof. White v. Mayor & Aldermen of Nashville, 2 Swan, 364; City of Memphis v. Adams et al., 9 Heisk., 523, 524, 24 Am. Rep., 331; McHarge v. Newcomer, 117 Tenn., 604, 100 S. W., 700, 9 L. R. A. (N. S.), 298.
Mr. Thompson, in his Commentaries on the Law of Negligence (volume 1), observes as follows on this subject :
“Where there is a public duty resting upon a corporation, it cannot discharge this duty by any agreement*113 which it may make with the undertaker of the work.” Section 651'.
In section 532 it is said:
Where the master commits to one of his servants, or to an independent contractor, or to an agent or undertaker of work, selected by the master, the performance of any absolute duty which the master owes to his own servant, or to others, whether that duty is assumed by contract or arises by operation of law, the master makes such person his alter ego or vice principal, and becomes responsible for his failure to perform that duty.”
“But when applied to municipal corporations, the rule is subject to the qualification that such corporations are under the absolute duty of exercising reasonable care to the end that their streets and sidewalks are kept free from nuisances, and safe for the public travel; and it is obvious that they are just as much bound for the prevention or removal of obstructions, pitfalls, or other nuisances placed there by their own contractors as when they are placed there by mere passengers.” See section 663.
The primary nondelegable legal duty was upon the city to remove the carcass within a reasonable time after the death of the horse, and, as between the city and the public, that duty never shifted. The contract did not affect it. The duty of the city to the public was alive and operative prior to the breach of the contract, and after its breach, and at the time of the injury.
This court has thus defined “proximate cause”:
“The ‘proximate cause’ of an injury may, in general, be stated to be that act or omission which immediately causes or fails to prevent the injury; an act or omission occurring or concurring with another, which, had it not happened, the injury would not have been inflicted.” Deming v. Cotton Press Co., 90 Tenn., 353, 17 S. W., 99, 13 L. R. A., 518.
The definition above given was approved in Telegraph Co. v. Zopfi, 93 Tenn., 369, 24 S. W., 633; Railroad Co. v. Kelly, 91 Tenn., 699, 20 S. W., 312, 17 L. R. A., 691, 30 Am. St. Rep., 902; Anderson v. Miller, 96 Tenn., 35, 33 S. W., 615, 31 L. R. A., 604, 54 Am. St. Rep., 812; Chattanooga Light & Power Co. v. Hodges, 109 Tenn., 338, 70 S. W., 616, 60 L. R. A., 459, 97 Am. St. Rep., 844.
In a case where a shipper sued a railroad eompany for the value ol a carload of material which was
The argument for complainant in this case proceeds upon the mistaken theory that the breach of the contract by the principal defendant was the proximate cause of the injury and the loss which followed it; and so it is insisted for complainant upon that theory that, although the contract does not in terms bind the principal defendant to pay any loss which the city may sustain by reason of the failure of that defendant to remove any carcass within six hours after notice, yet, by a fair and reasonable construction of the contract, the principal defendant would be so bound. A solution of this question, however, in the view which we have taken of the case, would be purely academic, as is also the question whether or not the contract, as written,
It is entirely clear .to us that, whatever may have beer within the contemplation of the parties at the time oi the making of this¡.,.contract as to the liability of the principal defendant for damages which might be sus tained by the city beyond the liquidated damages fixec by the contract for its failure to remove each carcas! where such damages were proximately caused by th< breach of the contract by the principal defendant, i certainly was not within the contemplation of the par ties, as we read the contract, that the principal defend ant should be liable to the city for damages proximatel; caused by the negligence of the city in failing to dis charge its public duty after a breach of the contrae, by the principal defendant.
Manifestly a correct construction of the contrae upon the last proposition is that it was the intention of the parties to bind the principal defendant to remov each carcass within six hours after notice, and, upon it failure so to do, that it would forfeit and pay to th city the sum of $5 as liquidated damages; whereupo the city would collect its liquidated damages and dii charge its public duty by removal of the carcass withi a reasonable time, and by some other agency.
Under the averments of the bill,, no decree can g against the defendant principal. The bill is not frame for a recovery of the liquidated damages. There cai
“It is axiomatic and fundamental that the obligation of a surety is strictissimi juris, and cannot be extended beyond the limits of his engagement.” Cross v. Scarboro, 6 Baxt., 136; Hardison v. Yeaman, 115 Tenn., 639, 91 S. W., 1111.
Prom, what has been said it results that the decree of the chancellor will be affirmed, with costa.